Stare Decisis and you

We lawyers love being fancy. We like our fancy words and phrases and we act like latin is our mother tongue. To be honest, we rarely use it, even in most legal writing since the style of today is down homey and casual. I know I try not to write so much like a lawyer because one thing you learn quickly as a criminal defense attorney is that no one cares if your follow thesis, antithesis, synthesis. Everyone just wants to know why your client shouldn’t spend the rest of his life rotting in a cell somewhere. So, storytelling is key. Latin words are less important in our writing, more so in understanding the basic concepts of law.

Although, I did use the phrase nunc pro tunc in a sentencing memo. (Just means retroactive to the prior order, but I felt like being pompous for a minute. So sue me.)

That brings us to the phrase in the title of this post. Stare decisis literally means stand by things decided. It’s what we usually call precedent. The U.S. legal system runs on a system of precedent – what’s been will always be unless there are compelling reasons to change it. Seems odd, right? That some jurists believe the Constitution is a ‘living document’ but the courts will rule the way it was in the olden days based on precedent?

Well, it is odd. And it’s not entirely how it works. Because there are actually very few bright line rules. We have thousands of shades of grey and the usual response to any legal question is ‘it depends.’ All cases have facts. The facts are what the trier of fact says they are. The trier of facts are either the jury in a jury trial, or judge in a bench trial. ( (The judge is also the decider of law. So, if your judge makes bad legal decisions – either because he misunderstood precedent or if the facts in the case don’t apply to the precedent he used – well you’ve got a bunch of issues for appeal (as long as your attorney preserved them by objecting.))

Precedent is fact dependent. That’s why, while you think it would be easier to give you an answer – I mean there are cases that hold X thing, right – we can’t. And it really isn’t the fault of the lawyers. Blame the courts. One of the reasons I think we have so much precedent, and cases that decide why yes, you can do y here but no, you can’t do y there, is because Judges are not neutral. Many judges have a vested interest either in keeping their jobs if they are elected, or are appointed by people with whom they share a similar ideology. Or, they have heard and seen so much that they lose their humanity and nothing we say or write can persuade them that all people are bad, no one can ever be saved and that the end is near anyways so go to prison forever.

We have a saying in my little office – everything is precedent until it isn’t. I dislike precedent because it gives us a false sense of stability. You cannot count on anything in the law. Judges can give and then they can take away. Case law will almost never be on the side of the accused and even if it is, the government (which allegedly represents you, friend) will find a way to contort it so that it falls outside of it. Of course we are guilty of the same thing, especially me, since, like I said, I view it as just a thing I have to try to change.

The name you are most familiar with in the legal world is probably Miranda. We’ve all heard of Miranda warnings. But did you know that the Supreme Court had decided a case called Escobedo v. Illinois in 1964 that had basically the same thing? This is two years before Miranda. During that time, cops and prosecutors had continued to interrogate suspects but differentiated the cases because of the different facts (In Escobedo, he’d asked for his lawyer and the lawyer was there and they didn’t let him in.) I imagine thousands of coerced and unconstitutional confessions were introduced at that time since precedent is only precedent until it isn’t anymore.

By the way, even though Miranda might make it seem like silence is golden, it isn’t. The courts have once again come all the way around – if you don’t affirmatively say you don’t want to talk and specifically ask for a lawyer, you are screwed. Until we can fix it.

So, don’t blame us for the sorry state of the law. Blame the universe for all of its nuance. Blame humanity for each of us being slightly different in slightly different ways. Blame any two damned snowflakes for not being alike.